Citation Nr: 1531689
Decision Date: 07/24/15 Archive Date: 08/05/15
DOCKET NO. 08-33 980A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for a right foot disability, including as secondary to service-connected left and right knee disabilities.
2. Entitlement to a rating higher than 10 percent for a left knee disability (strain) since July 23, 2008.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. M. Donahue Boushehri, Counsel
INTRODUCTION
The Veteran served on active duty from February 1991 to April 1996.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
In January 2012 the Board issued a decision concluding a rating greater than 10 percent was not warranted for the service-connected right knee disability (specifically, a strain) since April 26, 2007, or a rating greater than 10 percent for the left knee disability (also a strain) from April 29, 2007 to July 22, 2008. However, as concerning the additional issues of whether a higher rating was warranted for the left knee disability since July 23, 2008, and whether service connection was warranted for a right foot disability, the Board instead remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development.
In September 2013, after receiving the file back, the Board issued another decision, this time denying these additional claims of entitlement to service connection for a right foot disability as well as for a rating higher than 10 percent for the left knee disability (strain) since July 23, 2008. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In an April 2014 Order, the Court granted a Joint Motion for Remand (JMR), in the process vacating the Board's decision denying these claims and remanding them to the Board for further proceedings consistent with the JMR. In July 2014, after receiving the file back from the higher Court, the Board again denied the claim for a rating higher than 10 percent for the left knee strain since July 23, 2008, but instead remanded the claim for service connection for a right foot disorder for further development to comply with the terms of the JMR.
The AOJ since has continued to deny the claim of entitlement to service connection for a right foot disorder, so this claim is again before the Board. So, too, is the claim of entitlement to a rating higher than 10 percent for the left knee strain again before the Board since the Veteran again appealed the Board's denial of this other claim to the Court, and the Court has since - in March 2015 - again vacated the Board's decision denying this other claim and again remanded it to the Board for further proceedings consistent with the Court's order. As discussed below, the Joint Motion for Partial Remand (JMPR) adopted by the Court found that the VA examination relied upon by the Board was inadequate; for this reason, the Board is again remanding this claim for still additional development in compliance with the JMPR.
As for the claim of entitlement to service connection for the right foot disability, an additional VA examination is also required to ensure all indicated evidentiary development is completed. So the Board also is remanding this claim.
REMAND
The Veteran originally asserted entitlement to service connection for a right foot disorder because of a stress fracture during his service. A February 2012 VA compensation examiner, however, indicated there is no anatomically plausible mechanism by which the 2nd metatarsal stress fracture, which resolved, would cause the current right foot symptoms or current diagnoses of right heel spur and right 1stmetatarsophalangeal joint (MTP) degenerative joint disease. That VA examiner therefore disassociated the current right foot disability from the stress fracture during the Veteran's service, so concluded unfavorably.
The Board remanded this claim in July 2014 for an opinion additionally concerning whether the Veteran's current right foot disorders are due to his in-service diagnosis of post-traumatic changes of the right 1st MTP joint sesamoid and mid post traumatic changes bilateral medial tibial plateau left greater than right. In a September 2014 VA opinion, in response, the examiner determined "there was no evidence of any right first MTP degeneration on the X-ray in 1992." This examiner indicated that bone scan in October 1991 showed a small area of increased uptake in the sesamoid near the first metatarsal joint but not of the joint. Further, this examiner noted that the service treatment records (STRs) are unremarkable for any relation of the toe stress fracture (which healed) in service and the tibial plateau changes that were noted on bone scan from unrelated contusions of knees separate from toe condition. But from this wording it is unclear whether this examiner is suggesting the in-service diagnoses of post-traumatic changes of the right first MTP joint sesamoid and mid-post traumatic changes bilateral medial tibial plateau left greater than right were in error, or whether the examiner simply failed to address whether Veteran's current right foot disabilities are related to any foot diagnosis in service. So clarification of this is needed before readjudicating this claim.
Also, in a February 2015 statement, the Veteran additionally asserted, through his representative, that the right foot disorder is secondary to the service-connected left and right knee disabilities since these knee disabilities have caused the Veteran to have an antalgic gait by overcompensating. This additional theory of entitlement has not been considered by a VA compensation examiner, therefore a medical opinion is needed regarding this as well.
In an April 2015 statement, the Veteran, through his representative, asserted that the September 2014 VA opinion author failed to review the entire claims file; however, the Board finds this is inaccurate as the examiner specifically stated that the VA claims file was reviewed.
As to the claim of entitlement to a rating higher than 10 percent for a left knee disability(strain) since July 23, 2008, as noted in the Introduction, the Court recently vacated the Board's July 2014 denial of this claim by adopting the JMPR. The Parties to the JMPR found that the February 2012 VA examination relied upon by the Board was inadequate. Specifically, the Parties noted that the examiner acknowledged the Veteran's experience of flare-ups in left knee symptomatology, but the examiner provided no discussion speaking to the degree of functional loss that the Veteran experiences during these periods of flare-up, nor indicate that such findings were infeasible. For this reason, the Parties found that the VA examination relied upon by the Board failed to adequately address the criteria outlined in DeLuca v. Brown, 8 Vet. App. 202 (1995).
Accordingly, these claims are again REMANDED for the following still additional development and consideration:
1. Schedule the Veteran for another VA compensation examination of his right foot. Since this is a paperless appeal, ensure the examiner has access to Virtual VA and the Veterans Benefits Management System (VBMS) for the pertinent history.
This VA compensation examiner must address:
(1) whether the current degenerative changes of the right foot are related to the November 1991 findings during the Veteran's service of post-traumatic changes of the right first MTP joint sesamoid and mid post traumatic changes bilateral medial tibial plateau left greater than right;
AND
(2) whether the current degenerative changes of the right foot alternatively were caused OR are being aggravated by the service-connected left and right knee disabilities.
It is most essential the examiner discuss the underlying rationale of his/her opinions responding to these questions, preferably citing to specific evidence in the file supporting conclusions. If the examiner is unable to respond without resorting to mere speculation, he/she should so state but, even more importantly, discuss whether the need to speculate is owing to a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training) or by specifying what other reason precludes a sufficiently definitive response. Jones v. Shinseki, 23 Vet. App. 382 (2010).
2. Schedule the Veteran for a VA examination to reassess the severity of his service-connected left knee disability - including the extent it causes functional impairment to. The claims file must be made available to and reviewed by the examiner for the pertinent history. Since this is a paperless appeal, ensure the examiner has access to Virtual VA and VBMS for the pertinent history.
All indicated tests and studies should be performed, including range of motion measured in degrees for both left knee flexion and extension. The examiner must also report the range of motion of the service-connected left knee disability following repetitive testing. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, premature or excess fatigability, and incoordination, including during prolonged, repetitive use of the knee or when the Veteran's pain and other symptoms are most problematic (i.e., during "flare-ups").
The examiner must also determine the degree of severity (whether mild, moderate, or severe) of any instability or subluxation of the left knee and whether the knee locks, and if so, the frequency of the locking. The examiner should as well determine whether the left knee is ankylosed, and whether there is dislocation of the semilunar cartilage, and/or episodes of effusion.
It is most essential the examiner discuss the underlying rationale of his/her opinions responding to these questions, preferably citing to specific evidence in the file supporting conclusions. If the examiner is unable to respond without resorting to mere speculation, he/she should so state but, even more importantly, discuss whether the need to speculate is owing to a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training) or by specifying what other reason precludes a sufficiently definitive response. Jones v. Shinseki, 23 Vet. App. 382 (2010).
3. Review these examination reports to ensure they contain responses to the specific questions asked or explain why a response is not possible or feasible. If determined insufficient, return the report to the examiner for all necessary additional information.
4. Then readjudicate these claims of entitlement to service connection for a right foot disorder and entitlement to a rating higher than 10 percent for the left knee disability (strain) since July 23, 2008, in light of this and all other additional evidence. Regarding the claim of service connection, this readjudication must include consideration of all potential bases of entitlement (direct, presumptive and secondary). If either claim continues to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims.
The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).